Legal Legacy of Clergy Abuse Lawsuits

By Timothy D. Lytton | February 4, 2007

THIS YEAR MARKS the fifth anniversary of The Boston Globe's Pulitzer
Prize-winning coverage of clergy sexual abuse. The Pulitzer citation
praised the Globe for its "courageous, comprehensive coverage
of sexual abuse by priests, an effort that pierced secrecy, stirred
local, national, and international reaction and produced changes
in the Roman Catholic Church." Yet while the news media have
received well-deserved recognition for their part in exposing the
abuse and focusing attention on the need for institutional reform,
little attention has been paid to the underlying role played by
lawsuits. There's an unsung hero in this story: the plaintiff's
lawyer.

Although the tort system is more often maligned than celebrated,
it was the work of plaintiffs' lawyers that brought the scandal
to light in the first place. Pleadings, discovery documents, and
depositions in hundreds of cases during the course of more than
two decades have provided most of the information underlying media
coverage of the scandal. Lawsuits have fed journalists a steady
supply of compelling stories of both personal suffering and official
wrongdoing, and they have provided a defense against potential libel
claims and political cover to criticize powerful church officials.

It was lawsuits that first publicly pointed a finger at church
officials and focused attention on the need for institutional reform.
Unlike criminal law, with its narrow focus on individual wrongdoing,
tort law -- which allows individuals to sue for harm done to them
by others -- often looks beyond the immediate cause of an injury
to uncover the role of institutional leaders, such as corporate
executives, or in this case, bishops, who failed to do what they
should have to prevent harm. This is in part because institutional
defendants have deeper pockets and are therefore capable of paying
damages if they lose. But thanks to tort claims, we now understand
that clergy sexual abuse is not only a problem of individual priests
who molest children but also of church officials who failed to report
abuse and, in some instances, even facilitated it.

The remarkable success of clergy sexual abuse litigation stands
out among the many recent attempts to use civil lawsuits to address
social problems, most prominently against tobacco companies (aimed
at reducing smoking) and against gun-makers (designed to produce
stricter gun control). Tobacco and gun litigation have played significant
but relatively small roles in larger antismoking and gun-control
movements that predated them by decades. And while lawsuits have
focused attention on the role of the tobacco and gun industries
in contributing to smoking addiction and gun violence, the results
in terms of industry reform and government regulation have been
modest.

By contrast, clergy sexual abuse litigation has had an especially
powerful impact on policy making, drawing attention to the role
of church officials and placing the issue on the agendas of church
and government policy makers. Tort reform advocates -- pointing
to what they call unjustified costs to business and society -- argue
that tort litigation is an ineffective and illegitimate way to influence
policy making. The story of how lawyers brought clergy sexual abuse
to light and prompted the Catholic Church to change its ways suggests
otherwise.

Prior to the filing of a 1984 lawsuit against Father Gilbert Gauthe
and the Diocese of Lafayette, La., for Gauthe's molestation of dozens
of boys over many years, local media reporting of clergy sexual
abuse was scant and infrequent and there was no national media coverage
of the issue. Prosecutions were rare, public discussion and policy
debate nonexistent. In Lafayette, the ongoing litigation drama --
pleadings that named high church officials as defendants, shocking
revelations during the discovery process, and tearful trial testimony
by an 11-year-old sexual abuse victim -- generated sustained local
coverage and attracted regional and national media attention.

Other high profile cases filed across the country over the next
two decades involved such notorious pedophiles as James Porter in
Fall River, Mass.; Rudolph Kos in Dallas; Oliver O'Grady in Orange
County, Calif.; and, of course, John Geoghan in Boston. These cases
all led to key policy reforms within the church. Following the Gauthe
case in 1984, the National Conference of Catholic Bishops held intensive
discussions on the issue in Collegeville, Minn. After the Porter
case in 1992, the bishops adopted a nonbinding policy consisting
of five principles for addressing allegations. And in the wake of
the Geoghan case in 2002, the bishops promulgated a new mandatory
national policy -- the Charter for the Protection of Children and
Young People -- subsequently approved by the Vatican.

The policy results have been dramatic -- compensation and treatment
for victims, removal of proven perpetrators from ministry, training
for church personnel in detecting and investigating abuse allegations,
and public disclosure of church officials' role in facilitating
decades of child sexual abuse. While victim advocates debate the
effectiveness of these policies, there can be no doubt that they
represent a significant change in the way the church deals with
the problem.

Government policy-makers have also been spurred into action. Twenty
years of civil litigation and the public outrage it has generated
have made it politically safe for local prosecutors and state attorneys
general to launch extensive investigations, publish detailed reports
on abuse within their jurisdictions and, in some cases, to prosecute
perpetrators. In the wake of civil litigation and at the urging
of abuse victims and their attorneys, state legislatures have passed
laws mandating that clergy members report abuse, imposing new criminal
penalties for child endangerment, removing civil damage caps, and
extending statutes of limitation for child sexual abuse.

But these lawsuits have done more than merely reform the church.
They have also heightened sensitivity to the sexual abuse of children
in other contexts. Consider the recent congressional page scandal.

Last September, The New York Times ran a front-page story about
Florida Congressman Mark Foley's resignation headlined "Lawmaker
Quits Over E-Mail Sent to Teenage Pages." That story ran below
the fold. Four days later, another story on the scandal made it
to the top of the front page -- only now it was about the failure
of House Speaker Dennis Hastert to take action against Foley earlier.
That same day, the Times Op-Ed page ran an essay by a former page,
now a law professor, outlining institutional reforms for the oversight
of the page program. For those who missed the influence of the clergy
sexual abuse scandal on the framing of the congressional page scandal,
the Sunday Week in Review section printed a cartoon depicting Hastert
dressed as a bishop whispering to an aide wearing a Roman collar
"We should've just moved Foley to another parish."

The focus on the institutional failures that facilitate child sexual
abuse is one of the most important legacies of clergy sexual abuse
litigation. As a lawyer for the Los Angeles Archdiocese put it,
"now, of course, it's widely understood that organizations
do bear responsibility for the criminal misbehavior of members to
the extent that it is foreseeable. That's probably a positive thing
that came out of all this: That the law, in its wisdom and experience,
examined this phenomenon and decided that we need deeper levels
of accountability."

If these lawsuits against the Catholic Church have been a resounding
success, why have lawsuits against the tobacco and gun industries
not fared nearly as well? One reason is simply that allegations
of widespread child sexual molestation by compulsive pedophile priests
covered up at the highest levels of the church made for an especially
scandalous narrative, and one that fueled an unusual level of moral
outrage. This is not to belittle the horrific nature of lung cancer
and gun violence but only to point out that nothing stokes public
indignation quite like a sex scandal -- especially involving minors.

And whereas tobacco and gun litigation have been criticized as
attempts to circumvent the legislative process and regulation by
government agencies, clergy sexual abuse litigation has helped other
regulatory institutions -- the US bishops, law enforcement officials,
state legislators -- do their jobs better. Clergy sexual abuse litigation
is, in short, a poster child for the policy-making benefits of tort
litigation.

The use of civil lawsuits to pursue regulatory policy is of course
highly controversial. Tort reform advocates argue that tort litigation
is largely frivolous and wasteful and that it produces perverse
regulatory outcomes. They allege that rampant litigation and inflated
jury awards constitute a major drain on society's resources and
that widespread fear of liability leads to the withdrawal of essential
products and services and stifles safety innovation. For example,
the website of Common Good, a leading tort reform organization,
is replete with stories linking increases in childhood obesity to
the shortening of recess hours and bans on playing tag by school
officials who fear potential liability from playground accidents.

Of course, assessing the regulatory benefits of tort litigation
in other contexts requires case-by-case analysis. At the very least,
however, the example of clergy sexual abuse litigation -- by prompting
reluctant church and government officials to adopt sensible policies
to address a widespread social problem -- offers a compelling counterexample
to the sweeping claims of tort reform advocates. That's one legacy
of the Catholic Church scandal that few might have anticipated.

Timothy D. Lytton is professor of law at Albany Law School and
author of the forthcoming "Holding Bishops Accountable: How
Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse"
(Harvard University Press).